This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Wednesday, July 30, 2008

The Mosely decision in the UK involved consideration of issues that are likely to be much discussed here once the Australian Law Reform Commission Report on the review of privacy laws is released- who enjoys, and what are reasonable expectations of, privacy; and what constitutes responsible journalism in asserting the public interest in publication of information about aspects of a person's life that take place in private behind closed doors. The judgment included the observation that the public interest had to be determined by objective standards, and could not be left simply to a publisher to determine. While media lawyers and others are still working through the implications of the decision Mr Justice Eady said it could not "seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.”

Monday, July 28, 2008

Cabinet Secretary John Faulkner apparently thought criticism (guilty, your honour) of the Government for failing to get cracking on culture change to promote open government and a more effective Freedom of Information regime, was "ungenerous", given his recent speech on the subject, according to Matthew Moore's "What they won't tell you " column on Saturday.

Moore suggested that the"Reno memo" issued by the then Attorney General eight months after Bill Clinton was elected President of the US, is an example the Minister should follow if he was looking for ways to get the message across that the Government wants no more excessive secrecy from now on, not sometime in 2009-2010 when a proposed new legislative regime is in place.

A Faulkner memo, guideline, or instruction to the effect that agencies should err on the side of disclosure when dealing with requests for information about the conduct of public functions would be a clearer message than that conveyed by the Minister to senior public servants recently when he asked for their assistance in achieving the objectives of greater openness and transparency.

A few other initiatives could help to get things moving in the right direction, in advance of the legislative changes.

For example, the Government could pick up and act on these issues raised in the Australian Law Reform Commission Open Government Report twelve and a half years ago.Recommendation 8: "Performance agreements of all senior officers should be required to impose a responsibility to ensure efficient and effective practices and performance in respect of access to government-held information, including FOI requests."Recommendation 9 which appears to have current efficacy, given the fact that the Ombudsman recently found the Department of Immigration unnecessarily forced people to seek information under the FOI Act could be stiffened up a little: "Agencies should regularly examine the types of requests for information they receive to determine whether there are particular categories that could be dealt with independently of the FOI act. If there are, this should be made clear to potential applicants and staff."

It could issue new guidelines on the public interest that emphasise the importance of the public interest in access to information generally, in knowing the basis for government decisions, in encouraging public debate, and improving accountability and participation in government.But then to put to the sword, the hoary old chestnuts that the Commission all those years ago said should be irrelevant, that still get trotted out from time to time, and similar, contemporary versions including that the public service won't write things down if there is any prospect of disclosure.Irrelevant factors listed in the Report (page 97 ) were: the seniority of the person who is involved in preparing the document or who is the subject of the document;that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information ;that disclosure would cause a loss of confidence in the government; that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

While fees and charges are the subject of regulation, and this is still to be sorted out later, it could inform agencies that in exercising the discretion to allow a full or partial rebate on public interest grounds,they should bear in mind that the Government wishes to encourage use of the Act to scrutinise government performance, and that cost should not constitute a barrier to access.

It could ask every agency to examine and introduce ways to improve the processing of applications and achieve better results in complying with time deadlines, and ensure a senior officer keeps track of performance improvement.

It could ask every agency to undertake an immediate review of every FOI complaint currently under investigation by the Ombudsman, and every review application before the Administrative Appeals Tribunal, with a view to resolving matters promptly, particularly by the release of documents where no harm to important government or other interests would result. A senior officer should be aware of the savings in time and cost that result.

To stand alongside the Australian Privacy Awards initiated by the Privacy Commissioner and launched by Minister Faulkner a few months ago, the Government could announce its intention to recognise outstanding contributions to improved access to information through Australian Freedom of Information awards.

I'm just warming to the subject, maybe with the last suggestion going overboard, but you get the drift. An intention to abolish conclusive certificates was a welcome initiative, and a nudge to the public service about coming on board for greater transparency was a good thing. But there is so much more that could be done to start to shape a new culture

There has been quite a fuss in Western Australia in recent weeks since it was revealed that a helpful government agency, mistakenly provided parking station owners with contact details for the owners of cars that overstayed or didn't pay, leading to this comment that the Parliament's failure to pass privacy legislation which has languished in the upper house for over a year was part of the problem.

This post in July last year illustrated that the Uniform Civil Procedure Rules provide an opportunity to obtain this sort of information if certain conditions are satisfied, notwithstanding privacy or other access laws such as freedom of information, which might impose some limitations.

The ACT Government has released for public comment a discussion paper on Governance with recommendations aimed at improving community engagement and feedback. It includes a section on access to information issues, recommending examination of what can be done to encourage the use and reuse of government information, and a close look at the Solomon Report on the Queensland Freedom of Information Act to see what might be applied in the Territory. See Citizen Centred Governance .

An early test of the Government's interest may come with a vote on an Opposition Bill to abolish conclusive certificates- a Solomon recommendation in Queensland where they have rarely if ever been used, and on the casualty list across the lake in Canberra where Senator Faulkner last week presaged their removal from the Federal FOI Act. As the Canberra Times reported:

"The Stanhope Labor Government has used conclusive certificates to prevent the release of cabinet and other government documents relating to the strategic and functional review of the ACT public sector and the closure of ACT Government schools. In November 2007, Liberal MLA Vicki Dunne introduced a private member's Bill to abolish conclusive certificates for ACT cabinet and internal working documents. Yesterday, in the light of Federal Labor's FoI changes, she called on the Stanhope Government to support her Bill. ''The pressure is now on the chief minister to support the Opposition's FoI legislation when it is debated in the Legislative Assembly next month,'' she said.

Thursday, July 24, 2008

The Age today follows up yesterday's report of refused Freedom of Information applications for documents concerning investigations into health sector personnel, what contingency plans may be in place if the new transport ticketing system myki collapses and the location of Victoria's top poker machine venues with "Damming flow of info is to damn voters to ignorance" The Age is pleased about movement on reform at the Federal level but scathing about the situation in Victoria, and comments:

"What is it about the words "freedom of information" that politicians and public servants do not get? Freedom: (n), unrestricted use of. Information: (n), the act of informing or telling, knowledge. It is not a complicated concept. It is, however, a shamefully abused reality. The phrase has been mangled by politicians of all persuasions, who espouse the cause, yet deny its effect if it may have an adverse bearing on political fortunes.

The public service, both state and federal, degrade its intent in a far more banal manner. Releasing information could "inhibit an officer's ability to provide frank and candid advice in the future". Does this mean the converse is less important — that not releasing information could inhibit the public's ability to assess the issue at hand? Obviously public servants have to work within legal requirements, but there is cause for concern at the stagnation of movement towards more open and transparent government".

Tuesday, July 22, 2008

In a media release today following Senator Faulkner's announcement about conclusive certificates and reform of Freedom of Information legislation, a polite reminder from the President of the Australian Law Reform Commission that twelve years ago, as now, the Commission concluded that the access to government information challenge wasn't simply a matter of getting the legislation right :ALRC media release.pdf

"Professor Weisbrot noted that the Open Government report also cautioned against viewing legislative change alone as a panacea. “It is critical to get the law right, of course—but even more importantly, we need to nurture a strong ‘pro-disclosure culture’. “The starting point must be that citizens have a right to obtain requested material, absent genuinely compelling reasons to the contrary, and public servants should be looking to facilitate that right rather than seeking loopholes to preserve secrecy. This is why we need a Federal Information Commissioner, to provide continuing oversight and education"

Dare I say it's something beyond even the Commissioner, an idea still just a twinkle in the Minister's eye, but one for which those right at the top, such as the Prime Minister, Minister Faulkner and other ministers need to show strong, unambiguous and continuing commitment.

Cabinet Secretary Senator John Faulkner announced today that legislation will be introduced to abolish conclusive certificates-power to certify that disclosure of a document in response to a Freedom of Information application would be contrary to the public interest- and the associated limitation on review of such a decision. Media Release 25/2008 - Freedom of Information Reform

It's a welcome announcement, but more than a little disappointing that that's it for now, coming as it does eight months after the election of a new government that made so much of its plans for fundamental reform, plans that are still somewhere out there in the future.

Conclusive certificates have been criticised for years as undermining the objects of the legislation. While there have been a number of high profile cases, only 14 certificates apparently were issued in the period 1996-2006, during which time there were something of the order of 400,000 applications under the Act.Their abolition is good news and the decision goes further than the partial abolition recommended by the Law Reform Commission in 1995. But it's hardly a killer blow to the old guard, and does nothing to address the cultural problem, and the cost, delay and obfuscation that are the real obstacles when it comes to access to information about the conduct of government functions, particularly the background to policy and administrative decisions.

Senator Faulkner repeated the Government's commitment to "reforming the Commonwealth FOI Act and to promoting a pro-disclosure culture across the Government". Legislative reform will see a discussion paper later in the year and legislation in 2009, so it's still a long haul. The Australian Law Reform Commission, given another reference on FOI in the dying days of the Howard Government, has been told to desist.

As to the essential culture change, I'm not sure what model Senator Faulkner is working from, but it's going to take a lot more than the gentle nudge he gave senior public servants last week that the Government is relying on them to help achieve truly transparent and accountable government.

Interested in what NSW government agencies are up to in contracting with private sector bodies, including buying and selling land; what contracts are being awarded to a particular firm by different government agencies; and what's being spent across government on contracts for a particular type of service?

Should be a snap since an amendment to the NSW Freedom of Information Act, promoted by the Independent Member for (and Lord Mayor of) Sydney, Clover Moore, included a new section (15A) requiring information about contracts after 1 January 2007 for $150,000 or more to be published on a central government website, and in the case of contracts in excess of $5 million, (Class 3 contracts), the publication of the contract itself. As mentioned at the time, there are various qualifications, including for commercial confidence information(defined in the section, itself a plus), and others that are questionable ( for State Owned Corporations; industry support grants by the Department of State Development;and information that would attract any exemption in the FOI Act), but it all sounded like a big leap forward from the days of closely guarded secrets like the penalty provisions of the Cross City Tunnel contract.

Well it's turning out to be a a slight shuffle in the right direction rather than what was hoped for at the time.Compliance by government agencies has been patchy, to put it mildly, with some agencies who simply ignore the requirement entirely and others who don't, or for technical reasons can't, post the full or edited provisions of the big dollar contracts. To make matters worse, the designated central website for all this-the Department of Commerce e-tender site- is close to useless as an accountability tool, with limited search capability and an inclination to go haywire, even when you set strict parameters for a search.

How does the NSW Government ensure that agencies comply with requirements of Section 15a of the Freedom of Information Act 1989?

How many "class 3" contracts between a Government agency and the private sector, as defined by Section 15a of the Freedom of Information Act 1989, became effective since 1 January 2007?

How many actual "class 3" contracts were available on the tenders.nsw.gov.au website as at Monday 2 June 2008?

How many of the "class 3" contracts that are not published on tenders.nsw.gov.au between 1 January 2007 and 3 June 2008, are not commercial-in-confidence?

With regard to "class 3" contracts not available on tenders.nsw.gov.au that are not commercial in confidence:Why are these contracts not available on the website?How are these contracts publicly available?

Since commencement of Section 15a of the Freedom of Information Act 1989 what measures have been taken to update the search function of the tenders.nsw.gov.au site to make it more easy to use by those searching for contract disclosures?

Is the NSW Government aware of the website managed by the United States of America at www.usaspending.gov, which provides an easy to use method of finding government contract disclosures?

What assessment has the NSW Government made of updating the tenders.nsw.gov.au site so that it provides similar easy to use searches as the usaspending.gov site?

What work has the NSW Government done on drafting Regulations for Section 15a of the Freedom of Information Act 1989?

The Premier's answer is below. I think it can be paraphrased : we told the troops what they had to do, but we haven't followed up to see what they are doing; there are a couple of contracts up there but we have no idea how many should be there; the website is hopeless but Commerce has had a look at it and assure us things will be better later in the year; in respect of the last question, almost two years after we said we would talk to local councils about bringing them into the scheme, they haven't returned our call.

"A Premier's Memorandum (M2007-01) was issued in January 2007 which described the (then) new contract disclosure obligations imposed by section 15A of the Freedom of Information Act (FOI Act). In particular, the Memorandum noted that it is each government agency's responsibility to comply with the new provisions.

A number of class 3 contracts are available on the tenders.nsw.gov.au website. The total number of class 3 contracts which became effective since 1 January 2007, however, is not centrally collected.

The Department of Commerce has conducted a study into possible improvements in the website's search function usability and effectiveness. A redeveloped tenders.nsw.gov.au website, incorporating improvements recommended in the study, is expected to be operational later in 2008.

The Government has sought advice from the Local Government and Shires Association on its view as to whether a regulation should be made to extend the FOI Act's contract disclosure obligations to local authorities. No advice has been received to date."

Monday, July 21, 2008

The NSW Attorney General is a busy fellow. The Annual Report of the NSW Privacy Commissioner for 2006-2007 was signed by Acting Commissioner John Dickie, who finished up in the job at the end of December 2007. The report contains no date, so the Attorney General may have received it anytime to the end of last year. The Attorney General got around to tabling the report in Parliament on 3 June 2008, thus freeing up Privacy NSW to publish the report (on the web on 24 June)- just 359 days after the end of the period covered by the report, and six days before the end of the 2007-2008 year and the commencement of the task of putting together another annual report.

The report is published in two parts- some interesting case studies from page 19 onwards in Part 1 continued in Part 2 with a summary of some important Tribunal cases, and this comment about access to court documents(page 29):

"We opposed a proposal that all documents declared “open access” be made available to the media and to members of the public without those seeking access having to show sufficient cause. We expressed a view that there seems to be a trend towards allowing greater access to court documents, regardless of whether the interest of those seeking access is anything more than sheer curiosity."

Media organisations are of the view that the trend is for more not less restrictions on access to court documents. And does the principle of open justice cut any ice with Privacy NSW when it comes to"sufficient cause"?

There may be more to it than this, but according to a Sydney Morning Herald report the Civil Aviation Safety Authority has refused to release under freedom of information its overseas audit reports on maintenance performed on Australian aircraft , claiming to do so could harm the maintenance companies due to "adverse publicity" and also reduce the effectiveness of future audits by inhibiting "frankness and candour".

Aren't those responsible for audit functions required to be frank and candid?

Sunday, July 20, 2008

Nothing in the public domain so far, but the Federal Government has had the final report on the review of privacy laws by the Australian Law Reform Commission for six weeks, so no doubt lots of thinking behind the scenes about what to do about our weak, complex, confusing and unsatisfactory laws.

Meanwhile in the UK, consultations are underway on new, stronger powers for the Information Commissioner including powers to carry out compulsory inspections under warrant at premises suspected of a data breach; to set deadlines for information to be handed over; and to fine organisations that have breached a "good practice assessment".

Justice minister Michael Wills said in a statement: "We believe sharpening the information commissioner's teeth will enable him to be a stronger, more effective regulator.

"The way we use and protect information affects our ability to deliver better public services, opportunities for the most disadvantaged, improved protection from crime and terrorism and sustained economic well being. That's why we're launching this consultation."

Friday, July 18, 2008

In a speech on Wednesday to senior public servants, New Directions: Setting the Agenda on Accountability and Integrity Special Minister of State Faulkner outlined the Rudd Government’s reforms and planned reforms, emphasising how significantly the Government relies upon public service leaders to achieve its objectives in this area.

".., as you know, there is only so much Government can do in changing the way things are done in the APS. We rely on you, on your capacity for vision, on your ability to inspire and motivate those you work with, and especially on your ability to show, through example, the values on which we all depend: impartial professionalism, ethical behaviour, accountability, and of course, frank and fearless responsiveness."

The Minister pointed to the major change

" that in the new Federal Government, for the first time, many integrity and governance functions are brought together under a single Minister – FOI, public service administration, privacy, codes of conduct, the register for lobbyists, transparency, accountability, electoral law, the guidelines and administration of tax-payer funded entitlements, government advertising and the National archives."

On Freedom of Information, the Minister said the planned reforms (still no great detail, or timetable) will both affect and depend on senior public servants, as, as well as structural and legislative change, a shift in culture is required:

"Labor put it on record during the election campaign that we would have a more open approach in government, including a greater willingness to share information with the public through FOI. One of our promises was to abolish conclusive certificates – the trump card removing the power of the AAT and the courts to decide how the FOI laws apply to particular documents, distorting what should be an independent and transparent review process. We also promised to establish a new statutory position of an FOI Commissioner, who would introduce a whole of government approach to FOI, and provide guidance and the opportunity to monitor and review FOI decision-making across government. We are continuing to work towards those goals, along with other reforms to improve FOI processes.

Less straightforward but nevertheless critically important is the task of changing the culture for decision makers charged with the responsibility of determining what documents should be released and what documents should not. I recognise that beyond the straightforward release of personal information, FOI presents a challenge for decision makers. If the material is at all sensitive, it will always be easier to say no and withhold documents than to say yes and release them. The challenge is to get the balance right.

Yes, FOI is burdensome and comes at considerable cost. It involves agency time. But for this government it remains a key part of our commitment to more public processes. Achieving such changes in perspective and culture will require your assistance as senior public servants. As we proceed with our reforms in this area, we will be calling on you again to show leadership, and commitment, to our objectives of greater transparency and openness."

Thursday, July 17, 2008

Is the name of the nominator of another person's property for inclusion on the state's cultural register analogous to the name of someone making a complaint to a government agency? Are they both exercising a right that deserves privacy protection in the interests of the community at large? Will fewer nominations be made if the nominator cannot be assured of confidentiality?

This decision by the Queensland Assistant Information Commissioner answers these questions in the affirmative in upholding a determination by the Environmental Protection Agency to refuse access under the Freedom of Information Act to the name,on the basis that the named person had made the nomination was information concerning personal affairs, and there was no basis to find disclosure was in the public interest.

The FOI applicant was the owner of the property and claimed to be concerned about the motivation of the nominator, in the light of what were said to be false claims made in putting the nomination forward. The nomination form had been released with identifying particulars of the nominator deleted. Subsequent to the agency determination, the regulations were changed to provide in future nominations that the name of a nominator would not be disclosed without consent.

The conclusions of the Assistant Information Commissioner on whether a name in these circumstances is personal affairs information[34] and the public interest considerations[40-97]make interesting reading.

Weighing privacy and other considerations is complex. However another take on this is that the name of the nominator is similar to the name of someone seeking to influence a government decision, where the public interest in open and transparent government is better served when the community at large (absent special factors that justify confidentiality) or anyone interested, knows who is pushing what barrow, and perhaps why. Not to be, in Queensland at least.

Wednesday, July 16, 2008

Although not of a binding nature, a decision by the Acting Information Commissioner in Western Australia, that documents about the consideration of an application to the Human Research Ethics Committee at Curtin University of Technology were not exempt under the Freedom of Information Act, should make for lively discussion at universities and other organisations around the country where such committees consider research proposals.

The Acting Commissioner decided that the submission to the Committee, including supporting documents about the conduct of research, documents containing comments on the proposal by Committee members (other than a small amount of personal information) and information about funding from partners should all be disclosed.

The case concerned documents about a ongoing research program into Attention Deficit Hyperactivity Disorder(ADHD) and a comparison of “ the effects of stimulant medication (Dexamphetamine or Ritalin) with the new nonstimulant medication, Strattera, on cognitive, educational and social outcomes in boys and girls, diagnosed with ADHD.” The University gave the applicant access to 18 of the 42 relevant documents, but refused access to the rest on the grounds that they were all exempt under one or more of clauses 4(3) (commercial or business information); 6 (deliberative processes); 8(2) (confidential communications); and 11(1) (effective operation of agencies) of Schedule 1 to the FOI Act.

The Acting Commissioner's decision was based on a number of considerations and conclusions including that some information claimed exempt was already in the public domain, and that the assertions of the University in some instances about the need for confidentiality was "unsupported speculation and conjecture". In considering the familiar argument about the need for frank advice, he said:

"By way of example, if I were to accept the agency’s assertion that members of the HREC must be free to act “...in a full and frank manner” when considering research proposals, that would mean that I accept as reasonable the agency’s claim that professional academic members of the agency, and other like agencies, will only make honest, and sometimes adverse comments and criticisms about research proposals submitted to the HREC for ethical approval if they can do so behind the cloak of confidentiality. In my view, such a claim is inconsistent with the ethical standards expected of professionals in the academic world and elsewhere and, as with all of the other claims made by the agency, it is not supported by credible evidence. The agency’s views do not, in my view, establish that disclosure of the disputed documents would, on balance, be contrary to the public interest. In effect, the agency has given those statements as a basis for claiming that because of the inherent “checks and balances” in the HREC ethical approval processes the public generally and the complainant in particular, should take the agency’s word that the proper processes have been followed and that it should not be subject to further scrutiny and be held further accountable by disclosure under the FOI Act."[86-87]

The Acting Commisioner said the response to the application was

"inconsistent with the objects and intent of the FOI Act. Little weight was given, both at the initial decision stage and the internal review stage, by the agency to promoting the purposes and objects of the FOI Act. The reasons given by the agency for refusing access to the disputed documents are not, in my opinion, enough to justify refusing further access....The FOI Act is intended to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public."[92]

The nature of the research was also an important factor in weighing public interest considerations:

"There is a strong public interest in agencies being accountable for their decision-making and in the public having access to information about university research projects, particularly where, as here, the Project involves academic research involving the medication of children with drugs. I agree with the complainant’s submission that obtaining information about research of the kind being undertaken in relation to the Project is a strong public interest factor in favour of the public being able to scrutinise the approval given by the HREC of the agency and make its own judgment as to whether the HREC is discharging its functions properly. I also consider that disclosure of the disputed documents would serve the public interest in keeping the community informed and in promoting the discussion of matters of the kind relating to research about research that may improve the educational and personal outcomes of children diagnosed as suffering from ADHD."[94]

The Acting Commissioner acknowledged a "public interest in ensuring that the community has confidence that universities have integrity and ethical standards in relation to their research and that the HREC must be free to act in a full and frank manner when considering research proposals. I accept the agency’s advice that it has stringent internal and external reporting requirements and that research processes are closely monitored and sub-standard research practices are not tolerated. In my view, stringent internal and external reporting requirements as described by the agency are both necessary and appropriate but I would expect that to be the case in any event."

"However, the fact that such processes exist at the agency does not mean that individuals such as the complainant should be denied access to the same documents, in an effort to satisfy themselves that such internal and external reporting requirements are appropriate and being adhered to. An assertion that the complainant and the public at large should “take the agency’s word for it” that all the necessary checks and balances are being adhered to is not sufficient to persuade me that the public interest is best served by non-disclosure."[96].

Three weeks ago, the Commonwealth Ombudsman released a report following an investigation of the way Freedom of Information applications have been handled by the Department of Immigration and Citizenship. The report was critical of many aspects, but made it clear that the investigation had not involved examination of the quality of decisions made by the Department.

This decision last week by the Administrative Appeals Tribunal concerning documents sought by Dr Haneef provides an insight into decision making in the Department when dealing with an application for documents about the decision making process. The Department originally claimed 282 documents were exempt. After subsequent concessions, the removal of 73 duplicates, and the Tribunal's decision on six remaining documents, one was found to be exempt.

It's worth noting that the original decision was made five months after the coming to office of the Rudd Government, with its many pre-election commitments to change the culture in government in the direction of greater openness and transparency.

In April this year Dr Haneef applied for documents relating to the cancellation last year of his Business (Long Stay) visa, which had an expiry date of 30 August 2010; the decision to detain him in 2007 and to his ongoing detention at that time; the issue of a Criminal Justice Stay Certificate; and any documents recording or relating to communications between Government Departments concerning Dr Haneef. Here is the relevant part of the original determination:

"The documents I have exempted under subsection 36(1) are internal working documents. The documents to which you have sought access are documents which contain advice and recommendations prepared for the deliberative processes whose disclosure would be contrary to the public interest.

In coming to this view, I considered the following factors in favour of disclosure:

There is a general public interest in making information held by the Government accessible to the public;

A person or the general public is entitled to have access to documents containing decisions which affect them. Disclosure may reveal the reasons for decision; and

The need for openness and accountability of the Department’s operations.

On the other hand, I considered the following in favour of non-disclosure:

Advice to Ministers or other senior officers or free expression of opinion, if disclosed, would hamper the flow of advice from bureaucrats or others if they thought this advice could be subject to later scrutiny;

Disclosure would mean officers would be reluctant to record sensitive issues; and

Disclosure would inhibit full and frank discussions and may leave some people reluctant to record an opinion or provide advice.

On balance, I have decided that the public interest to exempt such documents outweighs the public interest in disclosing documents and there [sic] exempt them from disclosure under subsection 36(1) of the FOI Act.”

The Tribunal upheld the claim in respect of one of the six documents in dispute by the time the matter came before it, on the basis that it was contrary to the public interest to disclose a document that "will more readily be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef’s case and the way in which various Australian governmental agencies and officers handled it.....The preliminary nature of the views expressed, the questions which are raised but not answered, the speculation as to how events may unfold in the future and the way in which the Department might respond – all of these characteristics of the document demonstrate that disclosure would more readily lead to its misconstruction in the public arena than the other documents considered below."[41]

As to the other five, the Tribunal rejected arguments that disclosure would mean that officers would be less candid and frank in providing advice, and that this on its own would justify non disclosure on public interest grounds. There was "no convincing evidence .. presented to the Tribunal by the Department establishing any direct, significant or specific disadvantage that would be likely to flow from disclosure.."[45-50].

"With regard to drafts of the Statement of Reasons eventually given by the Minister in relation to the cancellation of Dr Haneef’s visa.. (t)he Department submits that the fact that these documents are in draft form justifies a finding that disclosure would not be in the public interest. The same general objection regarding the discouragement of candour and frankness is also advanced by the Department, but again it is not supported by any specific evidence which indicates that publication of these documents would be adverse to the public interest. Moreover, we are of the view that there is a very cogent public interest in having the unexpurgated reasons for cancellation of the visa made public, and that this is a consideration which should be given due weight. Far from accepting the Department’s submission that disclosure of the documents would run contrary to the public interest, we find that the public interest in respect of these documents warrants disclosure."[49]

We can only ponder why the Department didn't get closer to the correct decision way back in April. Unlike other aggrieved applicants,at least Dr Haneef got an expedited hearing.

The Hobart Mercury has used the Freedom of Information Act to access information about literacy and numeracy levels of students in the public sector system, reporting large discrepancies that seem to reflect differences in socio-economic status, but decided not to publish the names of the schools with poor records.The Mercury responded to a request from the Premier and the Education Department who said publication of this data would only further stigmatise struggling areas.

In a follow up today, the paper says it has tried in the past to expose such disadvantage but had been urged to focus on positive stories; acknowledges the danger of letting the Government, and others responsible, off the hook; and reserves the right to publish these details if and when community attitudes dictate it should do so. The decision not to publish will be much debated by the Mercury's media colleagues.

"Our withholding of the table of schools is a singular departure from this paper's commitment to the public right to know. But it is not open-ended. If a change in community thinking requires its publication we will do so. We made our decision, not to protect a Government that flunked the exam and avoided publishing the results, but to shield innocent children -- if only temporarily -- from being implicated in that failure. But this does not let the Government off the hook. It must quickly find a way to give this information to the community. Only through this knowledge can communities and schools hope to pressure government to end the inequities in education.

The Government is on notice to do something about what appears to be the emergence of an illiterate, poor and non-working class of Tasmanian who is destined to miss out on the opportunities and trappings that the rest of us enjoy."

Monday, July 14, 2008

This must be some sort of world record: The Office of the Information Commissioner in the Northern Territory, almost four years after the commencement of the Information Act, made its first external review decision on an access to information application. The paucity of decisions may mean a couple of things, including that freedom of information is going swimmingly in the Territory. But no matter what, you have to wonder about a review system that received a matter in July 2005 and hands down a decision in March 2008. Are there others in the three year long pipeline?

Notwithstanding, it's a no nonsense decision to grant access to a document that the Office of the Commissioner for Public Employment fought long and hard to protect- a report prepared by a consultant on the investigation and review of a grievance in connection with the applicant's employment at Alice Springs Hospital.

The Acting Commissioner rejected arguments that the report was outside the scope of the Act because it related to the decision making functions of a tribunal, concluding that the process of investigation and consideration did not involve the exercise of any judicial or quasi-judicial function[9-73]; decided that the public interest in disclosure outweighed other factors in considering the status of this deliberative process document[74-89]; and found the evidence did not support an argument that disclosure would have a substantial adverse effect on the management of employees[90-107], reveal information communicated in confidence to the agency[108-113] or constitute an unreasonable interference with the privacy of those who spoke to the investigator[114].

Some of the Acting Commissioner's counterparts in other jurisdictions, who seem greatly attached to public interest arguments to support confidentiality, even after the event, in investigative and deliberative processes might find food for contrary thought in this decision.

The Acting Commissioner's summary of the decision has been published in Issue 7 - June 2008 (227kb, PDF) of the Office Newsletter, In Fact. The decision (Collie and the Commissioner for Public Employment) is here

The Cabinet Secretary, Senator John Faulkner announced that the Government has asked the House of Representatives Standing Committee on Legal and Constitutional Affairs to consider and report by 28 February 2009, on a preferred model for legislation to protect public interest disclosures (whistleblowing) within the Australian Government public sector. The media release and terms of reference indicate a broad ranging inquiry.The Committee is chaired by one of the star recruits for Labor at the last election, Mark Dreyfus QC. It's probably inevitable that some sort of inquiry has proved necessary as Labor's election commitment was in broad and general terms.

The 175 page draft report, "Whistling while they work project" the result of three years of work by Dr A J Brown of Griffith University and colleagues, supported by a substantial grant by the Australian Research Council, has been sitting on the table since late last year.

The Committee is to look at whistleblowing in the Australian Government public sector so all this won't move us far in the direction of what all the experts say we need- a coherent, national approach to whistleblower protection laws.

Friday, July 11, 2008

Mark Pearson and Roger Patching of Bond University have published a literature review, "Government media relations: A 'Spin' through the literature", a terrific resource for researchers and students interested in what, unfortunately, have become the dark arts of access to, and communication of, government information. Freedom of Information gets some coverage in Chapters 1 and 2.

Abstract"Government media relations is deserving of serious study because it sits at the interface between the executive and journalism, two of the fundamental institutions in a modern democratic society. That line of communication is central crucial if citizens are to be kept informed of the workings of government and the machinations of the political system. The Australian High Court underscored its importance in the 1990s when it introduced an ‘implied constitutional freedom of communication on matters of politics and government’ through a series of decisions (2007, pp. 35-38). It is a communication channel where truth and transparency should be institutionalised. Truthful, accurate and transparent government communications are crucial to an informed citizenry via an effective news media.

This literature review aims to background and map key themes within the research to date in the field of government media relations (sometimes pejoratively known as ‘spin’) for the benefit of fellow researchers and to identify opportunities for research to take knowledge beyond that existing body of material."

With the ugly face of the mob on the street in Queensland, the hottest "right to know" issue has become, in the space of a week, our right to be informed about the whereabouts of convicted pedophiles, but why stop there?

Peter Faris QC in The Australian and this editorial in the Gold Coast News are advocating an Australian version of Megan's Law which includes convicted sex offenders in many US states. What next? As Paul Syvret in the Courier Mail says

"..where would such a register of criminals stop? If we are to be told when a convicted pedophile moves in around the corner, why shouldn't we know whether our neighbours are murderers, drug dealers, have a long history of break and enter offences, or are habitual drink-driving offenders? And remember, any such registers only list those who have been convicted. There are countless offenders of all types living quietly among us now. They just haven't been caught yet."

Even the Prime Minister has weighed in although it's not clear exactly what he advocates- a notification system, or no constraint on publication:

".. civil liberties lawyer Terry O'Gorman has called for laws to stop the media revealing the location of child sex offenders, Prime Minister Kevin Rudd also said people had a right to know. Mr Rudd said: "My general view is that the community has a right to know.

"I believe that this is a most sensitive, difficult area and these are sensitive, difficult decisions to be made by the authorities, but I think as a general principle the community does have a right to know.

The public register or notification requirement would be a dangerous step on a slippery path. Notwithstanding, there is no justication for the Courts preventing publication as in this case referred to in a Herald Sun editorial.

Encouraging to some extent that the PM has found his voice on the "right to know." PM, there are plenty of related issues awaiting your attention.

Thursday, July 10, 2008

In March the Acting WA Information Commissioner decided that where an issue of who was the closest living relative of a deceased person among siblings arose in the course of dealing with a Freedom of information application, the correct interpretation was that this meant the oldest sibling. He said other factors such as the quality and closeness of family relationships were too subjective to rely upon in interpreting the term “closest relative”. (See case 1)

In this decision he has reaffirmed the principle and applied it not only where there was evidence of an estrangement between the person and his late mother, but where in her later years she expressed the wish that he not be given access to her medical records

"The FOI Act was not intended to deal with such questions as the proper interpretation of words used in a statutory declaration or the state of mind of a deceased person. The A/Commissioner considered that the most appropriate way to distinguish which surviving child should be designated the “closest relative” for the purposes of the FOI Act is to select the individual born first in time because this provides the most objective and certain approach to interpretation, and accords with the ordinary dictionary definition of the term as used in the FOI Act'.

An unsuccessful Freedom of Information application for documents by the Sydney Morning Herald about the cost and the guest list for the Prime Minister's new years eve party at his official Sydney residence is hardly a matter of great significance but it raises some interesting issues.

The application was refused on the grounds that any relevant documents held by the Prime Minister were not "official documents of a minister" as defined by the FOI Act. According to the report, the relevant factors cited by the Prime Minister's Office were that "Mr Rudd and Ms Rein had personally invited guests to a private function at Kirribilli House on New Year's Eve" and "Mr Rudd and Ms Rein personally met all the additional costs associated with the conduct of the … function". It's correct that documents held by a minister of a personal kind, or comprising the records of a minister in her or his capacity as a member of Parliament, do not fall within the terms of documents covered by the Act.

It sounds as if the request was refused on the basis, that as the documents sought were outside the scope of the Act, the application was invalid, rather than a claim that the documents were exempt from disclosure. As the decision was made on behalf of the minister there is no right of internal review, no right to complain to the Ombudsman, and given the nature of the rejection, maybe no right of external review by the Administrative Appeals Tribunal. Just what constitute documents of a personal kind has not as far as I am aware been previously tested. Where the line should be drawn between the Prime Minister's use of public property and those aspects of the life of the Prime Minister and his family that are clearly of a personal nature is unlikely to be resolved by independent review in this case either.

In Senate Estimates hearings in February there was extensive questioning of officers of the Department of Prime Minister and Cabinet about the function. It emerged then that the Department did not have a copy of the guest list and that the additional costs of the function had been reimbursed to the Department by a payment by the Prime Minister's wife. In subsequent responses to questions taken on notice, the Department said Ms Rein had reimbursed all staff and other costs associated with the function over and above normal running costs, calculated by the Department and paid in response to an invoice sent to the PM. But the Department declined to provide further information, in accordance with what was described as a longstanding practice to not disclose details of public or private functions held at official residences.

It's unclear whether the Herald's FOI request was to the Department or the Prime Minister's Office. It would make a difference. If it was to the Office, the response received is what it is and that may be the end of the matter. If it went to the Department, however, the response received would not be adequate. A strange quirk in the Federal Act permits the minister or a person in his office to make a determination on a request for documents held by the agency but the response would have to determine the status of those documents. While the Department still may not hold a copy of the guest list, as made clear to the Estimates Committee, it holds documents about the costs of the function. The definition of " official document of a minister"referred to above would not be relevant to dealing with a request for documents held by the Department. The law says the documents held must be provided unless they are exempt. It might be hard to argue that a document detailing costs and a reimbursement for an event on public property involve unreasonable disclosure of personal information or would attract any other exemption. Any decision to refuse access would be subject to the normal rights of review.

As for guest lists at official functions not sure what has happened here, but the UK media for years have used FOI to keep an eye on who makes the list for Chequers, after this breakthrough in 2005.

Wednesday, July 09, 2008

Good to see the commencement of publication of the details of fines imposed for breach of food standards on the NSW Food Authority website, bringing this state at least somewhere closer to the good practice standard of comparable countries such as the UK, and many parts of the US, and Canada. There is not much sign of movement in the other states.

The Government's initiative is rolled out under the "name and shame" banner, from the Minister's media release, the use of this term on the web page, and predictably in media reporting. What a pity we haven't embraced a fully transparent scheme with real potential to lift food hygiene standards that would come from routine release of information about compliance-good, bad and indifferent-or through a rating system. Either would acknowledge good as well as poor performance, and provide an added incentive to all to lift their game

Examples of penalties that appeared on the "name and shame" website’s first day of publication included:

A restaurant in the Fairfield Council area fined $660 for dirty premises or equipment.

Two restaurants in North Sydney fined $660 and $330 each; one for a person smoking in a dry food store and the other for a dirty meat slicer.

A McDonald’s restaurant on the Central Coast fined $660 for failing to maintain fixtures and fittings in good repair.

Two restaurants in the Penrith Council area fined a total of $1320 for four counts of poor cleanliness and maintenance issues.

The matrix used to determine what constitutes a serious breach and therefore justifying publication is also reassuring after concern about the absence of this detail in the legislation that established the register earlier this year.

It's worth recalling that all this only came about after a two year campaign involving numerous Freedom of Information applications by the Sydney Morning Herald FOI editor Matthew Moore, and frequent refusals by different councils to disclose details on the basis that disclosure would have an unreasonable adverse effect on business affairs that was not outweighed by the public interest in disclosure, in at least one case supported by the Ombudsman. Congratulations to Blacktown and Woollahra councils who early on went against the tide and recognised a strong case of the public right to know when they saw one.

Tuesday, July 08, 2008

Here is an extract from the introduction to The Pew Center Report on the Government Performance Project - how well state governments in the US manage information, infrastructure, money, and people, released earlier this year:

"Just a few years ago, states would boast about their latest, cutting-edge piece oftechnology. Not anymore. Today, it’s not the tools. It’s results. One of those is transparency. In an era when “trust in government” is at low ebb, states are working to open up communications with their constituents."

The report concludes that "information is king", not in the sense so familiar here, that spin dominates government thinking, but in the recognition that how well government manages, analyses and disseminates information is central to performance in all areas:

"No single idea emerges more clearly from year-long research done for the 2008 Government Performance Project. As always, this report focuses on four fundamental areas of government management: Information, People, Money and Infrastructure. But this year, the elements that make up the information category—planning, goal-setting, measuring performance, disseminating data and evaluating progress—overlap with the other three fields to a greater degree than ever before. Information elements, in short, are key to how a statetakes care of its infrastructure, plans for its financial future and deals with the dramatic changes affecting the state workforce."

The criteria for the assessment of performance in the information category were:• The state actively focuses on making future policy and collecting information to supportthat policy direction.• Elected officials, the state budget office and agency personnel have appropriate dataon the relationship between costs and performance and use these data when makingresource-allocation decisions.• Agency managers have the appropriate information required to make programmanagement decisions.• The governor and agency managers have appropriate data that enable them to assessthe actual performance of policies and programs.• The public has appropriate access to information about the state, the performanceof state programs and state services and is able to provide input to state policy makers.

The Australian states would all point to some evidence of performance management and reporting, but I can't recall similar recognition of the"information as king" point, the assessment of performance in provision of access to information, or any ongoing comparative work, but happy to stand corrected.

Revelations about the 60s, followed by another about the 50s. If as now revealed, the US Government at high levels knew,there is an interesting issue about what if anything Australian records contain about incidents now coming to light in Korea and the US about the early days of the Korean War. According to AP,

"American officers observed, photographed and confidentially reported on.. wholesale executions by their South Korean ally, a secretive slaughter believed to have killed 100,000 or more leftists and supposed sympathizers, usually without charge or trial, in a few weeks in mid-1950."

Monday, July 07, 2008

This report in The Age on Australia's concerns 40 years ago about international developments that would prevent us from developing our own nuclear weapons, was based on documents released in the US in response to Freedom of Information applications by the National Security Archive at George Washington University. Details of the documents are on the NSA website which includes this comment

"The documents detail the well-known resistance to the NPT from countries like India ("China at her back, and Pakistan lurking on the sidelines") but also from more unusual objectors such as Australia (concerned that the Western Pacific security situation might worsen) and Italy (unhappy about the "second-class status" of non-nuclear states). The documents suggest that the current crisis in the NPT system has deep historical roots, but also that current headlines overlook the long-term achievements of the NPT regime."

I wonder what Australian documents of the time about this issue are available in open access at Australian Archives, and whether at our end there is still sensitivity about what we told the US all those years ago? An interesting comparative study for someone out there.

Dennis Atkins in the Courier Mail says Federal Cabinet will today consider Minister Faulkner's submission on Freedom of Information reform, with strong public service advice that removing "ministerial discretion to block the release of documents, .. could threaten the Cabinet system of government and even weaken intelligence ties with foreign powers." Wonder they didn't add the sun will not rise, the earth will not turn, and other similar arguments that have been running for the last 30 years.

The Sydney Morning Herald reported last week that NSW Department of Health continues to hold the line against publication of information about the professional performance of hospitals and doctors, but the Feds are showing no sign of backing off their insistence that more transparency has to be part of the away forward on reform of the health system.

The Herald quoted a publicly available audit, Review Of Implantation Procedures For Permanent Pacemakers In NSW Public Hospitals 2007, stating there "appeared to be no difference in complication rates between … where the procedure was performed." However the report showed complication rates varied from 8.5 per cent for the best-performing hospital to 17 per cent for the worst, and neither the report nor the Department identified the hospitals concerned.

A cardiologist told the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals recently that there was a "strong case" for public report cards on surgeons who implanted pacemakers because some had higher infection rates and "signature mistakes". And the director of the Centre for Human Bioethics at Monash University, Justin Oakley, said if patients were not told of differences between hospitals "there has been a failure in informed consent".

"NSW hospitals would be forced to publish their mortality rates or risk losing federal funding, the federal Health Minister, Nicola Roxon, said this week. The Prime Minister, Kevin Rudd, was "adamant" such criteria were made public in his plan to make states more accountable for public hospital performance, she said.

We lag many systems around the world in this area, but it is still a hot issue, for example in California where a bill before the legislature also seeks to ensure public disclosure of medical outcomes and other information about health care safety, quality and cost. One of the supporters says the potential cost savings are enormous and that public disclosure of safety and quality information, such as mortality rates by hospital, has been shown to lead to improved performance.

Friday, July 04, 2008

An unnamed local council in Victoria released 223 pages of documents to a Freedom of Information applicant who was involved in a protracted dispute with a neighbour, including 185 pages of information provided largely in confidence by the neighbour about their side of the story, and without any consultation.It proved to be an expensive failure to process the application correctly.

First an investigation by the Ombudsman, that resulted in an acknowledgment by the council that it "may have erred seriously in its management of the FOI request". Then when the council did not follow the Ombudsman's recommendations to resolve the matter, the neighbour complained to the Privacy Commissioner who was able to investigate an alleged breach of privacy because the council appears to have released the documents as a routine disclosure, not under the FOI Act. As a result of a finding by the Commissioner of breach of the disclosure principle, the council agreed to payment of an undisclosed sum in compensation.

While the aggrieved party is entitled to expect privacy in the handling of these complaints, wouldn't the local citizens be better off if the council was publicly named, rather than hidden behind "Local Council" in the case note issued by the Privacy Commissioner? That might enable any of them interested, to ask relevant questions. Quite apart from final compensation, how much did this cost in terms of staff time and any other assistance sought to deal with two investigations, and why did the council fail to act on the Ombudsman's recommendations?

Midwinter, and many MPs take flight for foreign climes, hopefully to broaden their horizons(or not as the case may be). Junket or no, as this editorial in the Herald Sun points out, there is a lack of accountability as a result of the fact that parliament(in all jurisdictions,not just Victoria) is not an agency for the purposes of freedom of information legislation.This has been on the list of recommended but unaddressed reforms in Canberra since the 1995 ALRC Open Government report. The issue rarely gets a mention elsewhere. Come on folks, we should expect better than this.

Thursday, July 03, 2008

Credit where due to the Federal Government and Special Minister of State Faulkner for these initiatives for improved transparency, even though the first two still fall short of a robust disclosure regime:

Publication of information on the web about aggregate cost of travel by office-holders

New guidelines on use of public money for government advertising include the requirement for publication on the web of Auditor General's assessment of compliance.In the light of the Howard Government's record in this department, a brownie point for trying to the Opposition spokesman who criticised the guidelines for failing to include the word"vet" .

But the recently released Code of Conduct for Ministerial Staff is silent on responsiveness to parliamentary committees, one of the issues Labor raised when in opposition. This was my assessment after Senate Estimates in February: "It sounds like there is some significant wriggle room regarding a pre election commitment that ministerial staff will be available to answer questions posed by parliamentary committees: this now seems only to be applied where a staffer has been improperly involved in executive decisions." The Code says staff are not to involve themselves in such matters. "This Government believes that within Minister's offices, it is Ministers who must make executive decisions, and it is Ministers who are and who should be accountable for those decisions,'' Senator Faulkner said.

Wednesday, July 02, 2008

Stories of cost and delay are commonplace in Freedom of Information experience, but here is Tim Lester of Nine television network on the story so far of an attempt to access two reports on the preparedness of hospitals to cope with a national emergency ($ 3650 to make a decision says the Federal Department of Health); and The Age on a bill for almost $2000, and no "public interest " reduction to get to first base, with an application for documents from the Department of Prime Minister and Cabinet concerning "rendition", the US practice of forced transfer of terrorism-related prisoners between countries. The " decision-maker is not satisfied that any material released by the department would add any value to information that is already in the public domain".

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.